Kerala High Court
Suresh vs Reetha Philip on 21 May, 2024
Author: Mary Joseph
Bench: Mary Joseph
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.REV.PET NO. 735 OF 2014
AGAINST THE JUDGMENT DATED 12.03.2014 IN CRIMINAL APPEAL NO.853 OF
2008 OF THE COURT OF THE ADDITIONAL SESSIONS JUDGE,IRINJALAKUDA
ARISING OUT OF THE JUDGMENT DATED 29.11.2008 IN CC NO.275 OF 2005
OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY
REVISION PETITIONER/APPELLANT/ACCUSED:
SURESH, AGED 50 YEARS
S/O.N.R.CHANDRA, 33 ACC ROAD, PAZHANI, TAMIL NADU
(C/O.ADV.PALANI SWAMI, ANNA NAGAR, PALANI, TAMILNADU,
PARTNER OF INBORN CHEMICALS, S.S.NO.939/2A,
IYYAMPULLY VILLAGE, PALANI, KODAIKANNAL ROAD,
TAMIL NADU).
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.V.C.SARATH
SRI.VIPIN NARAYAN
RESPONDENTS/RESPONDENTS/COMPLAINANT & STATE:
1 REETHA PHILIP, PROPRIETOR,
M/S.PRINCY AGENCIES, POTTA DESOM,
PERAMBRA VILLAGE, MUKUNDAPURAM TALUK,
REPRESENTED BY HER POWER OFATTORNEY HOLDER PHILIP A.V.,
AGED 50 YEARS, S/O.DANIAL, PUTHENKANDATHIL HOUSE,
POTTA DESOM, PERMBRA VILLAGE,
MUKUNDAPURAM TALUK, PIN- 680 689.
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,
ERNAKULAM -682 031.
BY ADV R1 BY SRI.C.P.UDAYABHANU
R2 BY SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY HEARD ON
04.04.2022, ALONG WITH CRL.REV.PET.NO.893/2014, THE COURT ON
21.05.2024 DELIVERED THE FOLLOWING:
Crl.R.P.Nos.735 and 893 of 2014
2
IN THE HIGH COURT OF KERALA AT ERNAKULAM
PRESENT
THE HONOURABLE MRS. JUSTICE MARY JOSEPH
TUESDAY, THE 21ST DAY OF MAY 2024 / 31ST VAISAKHA, 1946
CRL.REV.PET NO. 893 OF 2014
AGAINST THE JUDGMENT DATED 31.03.2014 IN CRIMINAL APPEAL NO.53 OF
2009 OF THE COURT OF ADDITIONAL SESSIONS JUDGE, IRINJALAKUDA
ARISING OUT OF THE JUDGMENT DATED 29.12.2008 IN CC NO.1336 OF
2005 OF JUDICIAL MAGISTRATE OF FIRST CLASS - II, CHALAKUDY
REVISION PETITIONER/APPELLANT/ACCUSED:
SURESH, AGED 45 YEARS
S/O.N R CHANDRAN, 33 ACC ROAD, PAZHANI,
TAMIL NADU, (C/O.ADV, PALANI SWAMI) ANNA NAGAR,
PALANI, TAMIL NADU, PARTNER OF INBORN CHEMICALS,
SS NO 939/2A,IYYAMPULLY VILLAGE, PALANI,
KODAIKANAL ROAD, TAMIL NADU
BY ADVS.SRI.P.VIJAYA BHANU (SR.)
SRI.M.REVIKRISHNAN
SRI.THOMAS J.ANAKKALLUNKAL
RESPONDENTS/RESPONDENTS/COMPLAINANT AND STATE:
1 REETHA PHILIP,
PROPRIETOR M/S.PRINCY AGENCIES, POTTA DESOM,
PERAMBRA VILLAGE, MUKUNDAPURAM TALUK,
REPRESENTED BY HER POWER OF ATTORNEY HOLDER
PHILIP A V, AGED 50 YEARS,
S/O.DANIAL PUTHEN KANDATHIL HOUSE, POTTA DESOM,
PARAMBRA VILLAGE, MUKUNDAPURAM TALUK-680 689
2 STATE OF KERALA
REPRESENTED BY PUBLIC PROSECUTOR, HIGH COURT OF
KERALA, ERNAKULAM-682031
R2 BY SMT.SEENA C, PUBLIC PROSECUTOR
THIS CRIMINAL REVISION PETITION HAVING BEEN FINALLY
HEARD ON 04.04.2022 ALONG WITH CRL.REV.PET.NO.735/2014,
THE COURT ON 21.05.2024 DELIVERED THE FOLLOWING:
Crl.R.P.Nos.735 and 893 of 2014
3
MARY JOSEPH, J.
-----------------------
Crl.R.P.Nos.735 and 893 of 2014
-----------------------
Dated this the 21st day of May, 2024
ORDER
Crl.R.P.No.735/2014 was originated from a judgment
passed by Judicial First Class Magistrate Court-II, Chalakkudy
(for short 'the trial court') in C.C.No.275/2005 on 29.11.2008
and confirmed by Additional Court of Sessions, Irinjalakuda
(for short 'the appellate court') in Crl.Appeal No.853/2008 on
12.03.2014.
2. Crl.R.P.No.893/2014 was originated from a
judgment passed by Judicial First Class Magistrate Court-II,
Chalakkudy (for short 'the trial court') in C.C.No.1336/2005
on 29.12.2008 and confirmed by Additional Court of Sessions,
Irinjalakuda (for short 'the appellate court') vide judgment
passed on 31.03.2014 in Crl.Appeal No.53/2009.
3. Revision petitioner in Crl.R.P.No.735/2014 is
accused No.1 in C.C.No.275/2005 on the files of the trial court
Crl.R.P.Nos.735 and 893 of 2014
and the appellant in Crl.Appeal No.853/2008 on the files of the
appellate court. Revision petitioner in Crl.R.P.No.893/2014 is
accused No.1 in C.C.No.1336/2005 on the files of the trial
court and the appellant in Crl.Appeal No.53/2009, on the files
of the appellate court.
4. Challenge was raised against concurrent findings of
guilt of accused No.1 in the cases aforestated for an offence
punishable under Section 138 of the Negotiable Instruments
Act, 1881 (for short 'the NI Act'). The trial court found
accused No.1 guilty of the offence punishable under Section
138 NI Act and convicted and sentenced him to undergo simple
imprisonment for 8 months and to pay a sum of `80,000/- as
compensation and to undergo simple imprisonment for four
months in default of payment, in C.C.No.275/2005. Accused
Nos.2 and 3 were found by the trial court not guilty for the
offence under Section 138 NI Act and acquitted. When the
judgment was assailed in appeal, the appellate court dismissed
the appeal and confirmed the judgment passed by the trial
court.
Crl.R.P.Nos.735 and 893 of 2014
5. The trial court found accused No.1 guilty of the
offence under Section 138 NI Act in C.C.No.1336/2005 and
convicted and sentenced him to undergo simple imprisonment
for one year and to pay a sum of `4,01,814/- as compensation
and to undergo simple imprisonment for 6 months in default of
payment of compensation. Accused Nos.2 and 3 were found
not guilty for the offence under Section 138 NI Act. When the
judgment of the trial court was assailed by accused No.1, the
appellate court dismissed the appeal and confirmed the finding
of guilt of accused No.1 and the orders of conviction and
sentence imposed on him.
6. Aggrieved by the concurrent findings of guilt, orders
of conviction and sentence passed by the trial court as well as
the appellate court, accused No.1 has filed the revisions on
hand.
7. According to Sri.P.Vijaya Bhanu, the learned
counsel for the revision petitioners, the trial court as well as
the appellate court undoubtedly went illegal, improper and
infirm in law as well as facts, while finding accused No.1 guilty
Crl.R.P.Nos.735 and 893 of 2014
of the offence under Section 138 NI Act and convicting and
sentencing him in both the cases. According to him, the
evidence on record was not appreciated properly by the courts
and therefore, judgments were passed in the manner. As per
the averments made in the complaint filed to launch the
prosecution, accused No.3 is a partnership firm and accused
Nos.1 and 2 are its partners. According to the learned counsel,
the complainant failed to establish the status of the accused
and therefore, accused No.1 cannot be said to be a partner of
accused No.3 as averred by the complainant. According to
him, during trial, Exts.D1 and D2 were marked in evidence
from the side of the accused and accused No.3 was described
as a proprietary concern and one Mr.Subramanyan as it's sole
proprietor. According to the accused, Mr.Subramanyan was
not arrayed as an accused in the case on hand. According to
the learned counsel, since accused Nos.2 and 3 were acquitted
for the offence, the trial court and the appellate court were not
justified in finding accused No.1 alone guilty for the offence
under Section 138 NI Act. According to him, the trial court as
Crl.R.P.Nos.735 and 893 of 2014
well as the appellate court overlooked the factum that the
complainant failed to adduce any evidence to establish that
accused No.1 was a partner of accused No.3. The trial court as
well as the appellate court failed to notice that evidence was
not forthcoming from the side of the complainant to establish
that a legally enforceable debt or liability was due from the
complainant. According to him, it can be found from the
evidence on record that a statutory notice as contemplated
under Clause (b) of proviso to Section 138 NI Act was not
served by the complainant on accused No.3. Accordingly the
learned counsel canvassed for allowing the Crl.Revision
Petitions and to reverse the judgments passed by the trial
court as well as the appellate court, concurrently finding
accused No.1 guilty for the offence under Section 138 NI Act
and convicting and sentencing him.
8. The learned counsel for the respondents in both the
Crl.Revision Petitions argued on the contrary that Crl.Revision
Petitions only deserve to be dismissed. According to him, the
trial court as well as the appellate court have appreciated the
Crl.R.P.Nos.735 and 893 of 2014
evidence on record in C.C.Nos.275/2005 and 1336/2005 in the
correct perspective and therefore interference with the
concurrent findings of guilt and orders of conviction and
sentence passed are uncalled for.
9. Before adverting to the rival contentions raised by
the respective parties, it is relevant to have a discussion in
brief of the averments made by the complainant in the private
complaints filed under Section 142 NI Act to launch the
prosecutions under Section 138 NI Act against the revision
petitioner.
10. Paragraph No.1 of the complaint in
C.C.No.275/2005 being important and crucial is extracted
hereunder for easy reference:
"1. The complainant is conducting a business of waste oils
under the name and style of 'Princy agencies' as her sole
proprietorship concern. The 1 st and 2nd accused are the
partners of the 3rd accused firm. The 3rd accused firm is
dealer of waste oils at Palani. The accused issued a cheque
for Rs.80,000/- (Rupee Eighty Thousand only) dt.24-06-
2004, bearing No.185411 of the Palani P.014 branch of The
Indian Bank, to the complainant for discharging a part of a
legally enforceable liability. The cheque was executed by the
accused at the office of the complainant at Potta Desom."
Crl.R.P.Nos.735 and 893 of 2014
Paragraph No.1 of the complaint in C.C.No.1336/2005 is also
extracted hereunder:
"1. The complainant is conducting a business of waste oils
under the name and style of 'Princy agencies' as her sole
proprietorship concern. The 1 st and 2nd accused are the
partners of the 3rd accused firm. The 3 rd accused firm is
dealer of waste oils at Palani. The accused issued a
cheque for Rs.4,01,814/- (Rupee Four lakh One Thousand
Eight Hundred and Fourteen only) dt.2-06-2005, bearing
No.185420 of the Palani P.014 branch of The Indian Bank,
to the complainant for discharging a part of a legally
enforceable liability. The cheque was executed by the
accused at the office of the complainant at Potta Desom."
As revealed from the above extracts, pleadings were
raised in the complaints to the effect that accused Nos.1 and 2
are the partners of accused No.3, which is a firm dealing with
waste oils at Palani. It was pleaded further in CC
No.1336/2005 that a cheque dated 02.06.2005 bearing
No.185420 for a sum of `4,01,814/- was drawn from the
Palani Branch of Indian Bank by the accused and issued to the
complainant to discharge a legally enforceable debt owed to
her. It was stated in CC No.275/2005 that a cheque dated
Crl.R.P.Nos.735 and 893 of 2014
24.06.2004, bearing No.185411 for a sum of `80,000/- was
drawn from the Palani Branch of the Indian Bank by the
accused and issued to the complainant to discharge a legally
enforceable debt owed to her. It is stated further that the
cheques were executed by the accused at the office of the
complainant situated at Potta Desom.
11. In the cause title of both complaints, the
complainant was described as a proprietorship firm namely
M/s.Princy Agencies and represented by Mrs.Reetha Philip, it's
Proprietor who has executed a power of attorney marked in
evidence as Ext.P15 in favour of one Mr.Philip.A.V. The person
alleged as the Proprietor of the complainant was examined as
PW1. According to her, she had gone to the office of accused
No.3 twice and the concern run was introduced to her as a
partnership firm. According to her `4,81,214/- was totally
owed by accused No.3 to M/s.Princy Agencies. When a
suggestion was put to her in cross examination that Ext.P1 was
not issued to her by the accused, she denied that and deposed
assertively that it was signed by accused No.1.
Crl.R.P.Nos.735 and 893 of 2014
12. It was stated in the complaints that accused No.3
was a firm dealing in waste oil at Palani and accused Nos.1 and
2 were it's partners. It was further stated that `4,01,814/-
and `80,000/- respectively were due from the accused to the
complainant and the accused had drawn cheques for the
respective sums bearing Nos.185420 dated 02.06.2005 and
185411 dated 24.06.2004 from Palani, P.014 branch of the
Indian Bank and issued to the complainant to discharge the
legally enforceable liability, in part.
13. It was further stated that the cheques forwarded for
collection through State Bank of Travancore, Chalakkudy
Branch were dishonoured by the banker of the accused for
insufficient funds in his account to honour it and the factum of
dishonour was intimated to the complainant by the bank on
26.11.2004 and 16.06.2005 respectively. It was stated
furthermore that registered lawyer notices dated 08.12.2004
and 29.06.2005 respectively were issued by the complainant in
the address where accused ordinarily resides, calling upon him
to pay the amount covered by the cheques.
Crl.R.P.Nos.735 and 893 of 2014
14. Notices were returned by the accused. The amount
due to the complainant were also not paid. Thus, the accused
was alleged as committed the offence under Section 138 NI
Act. Therefore, it is not clear from the pleadings, which
among the accused had drawn the cheques and issued to the
complainant, and sent for collection to the bank account
maintained by which of the accused and returned bounced. It
is not clear from the pleadings in the complaint, against which
of the accused the statutory notices were issued.
15. Paragraph 2 of the proof affidavit filed by the
complainant in lieu of examination in chief in
C.C.No.1336/2005 reads:
"ഞാൻ പ്രതികൾക്ക് വേസ്റ്റ് ഓയിൽ വിറ്റ വകയിൽ എനിക്ക്
മൊത്തം 4,81,814/- (നാല് ലക്ഷത്തി എൺപത്തൊന്നായിരത്തി
എണ്ണൂറ്റി പതിനാല് രൂപ) തരുവാനുണ്ട്. ആയതിന്റെ ഒരു ഭാഗം
തരുന്നതിലേക്ക് വേണ്ടി എനിക്ക് 3-ാം പ്രതി സ്ഥാപനത്തിന്റെ
പാർട്ട്ണർമാരായ 1, 2 പ്രതികൾ കൂടി 2/06/2005 തിയ്യതി വച്ച്
ഇന്ത്യൻ ബാങ്ക് പളനി ബ്രാഞ്ചിന്റെ 4,01,814/- (നാലു ലക്ഷത്തി
ഒരായിരത്തി എണ്ണൂറ്റി പതിനാല്) രൂപയ്ക്കുള്ള 185420 -)0 നമ്പറ്
ചെക്ക് ഒപ്പിട്ടു തന്നു. പ്രസ്തുത ചെക്ക് ഞാൻ കോടതി മുൻപാകെ
ഹാജരാക്കിയിട്ടുണ്ട്. ആയതിനെ എക്സിബിറ്റ് പി. 1 ആയി മാർക്ക്
ചെയ്യേണ്ടതാണ്."
Paragraph 2 of the proof affidavit filed by the complainant in
lieu of examination in chief in C.C.No.275/2005 reads:
Crl.R.P.Nos.735 and 893 of 2014
"ഞാൻ പ്രതികൾക്ക് വേസ്റ്റ് ഓയിൽ വിറ്റ വകയിൽ എനിക്ക്
മൊത്തം 4,81,814/- (നാല് ലക്ഷത്തി എൺപത്തൊന്നായിരത്തി
എണ്ണൂറ്റി പതിനാല് ) രൂപ തരുവാനുണ്ട്. ആയതിന്റെ ഒരു ഭാഗം
തരുന്നതിലേക്ക് വേണ്ടി എനിക്ക് 3-ാം പ്രതി സ്ഥാപനത്തിന്റെ
പാർട്ട്ണർമാരായ 1, 2 പ്രതികൾ കൂടി 24/06/2004 തിയ്യതി വച്ച്
ഇന്ത്യൻ ബാങ്ക് പളനി ബ്രാഞ്ചിന്റെ 80,000/-- (എൺപതിനായിരം)
രൂപയ്ക്കുള്ള 185411-)0 നമ്പറ് ചെക്ക് 1-ാം പ്രതി ഒപ്പിട്ട് എനിക്ക്
തന്നു. പ്രസ്തുത ചെക്ക് ഞാൻ കോടതി മുൻപാകെ
ഹാജരാക്കിയിട്ടുണ്ട്. ആയതിനെ എക്സിബിറ്റ് പി. 1 ആയി മാർക്ക്
ചെയ്യേണ്ടതാണ്."
Therefore, it was found specifically stated in the proof
affidavits that each of the cheque was signed by accused Nos.1
and 2 and issued respectively on 24.06.2004 and 02.06.2005
towards part payment of the dues to the complainant and that
was proposed to be marked in evidence in each case as Ext.P1.
16. 3rd paragraph of the proof affidavit filed in
C.C.No.1336/2005 reads:
"എക്സിബിറ്റ് പി. 1 ൽ കാണുന്ന ഒപ്പ് 1-)0 പ്രതിയുടെതാണ്.
ആയത് 1-)0 പ്രതി എന്റെ മുൻപിൽ വച്ച് ഇട്ടതാണ്. 1-)0 പ്രതി
ചെക്ക് ഒപ്പിട്ട് തരുന്ന സമയം 2-)0 പ്രതി 1-)0 പ്രതിയുടെ ഒപ്പം
ഉണ്ടായിരുന്നു. 3-)0 പ്രതി സ്ഥാപനത്തിലെ മറ്റൊരു പാർട്ട്ണർ
ആയ 2-)0 പ്രതിയുടെ അറിവോടും സമ്മതത്തോടും കൂടിയാണ്
1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് ഒപ്പിട്ട് എനിക്ക് തന്നത്.
എന്റെ സ്ഥാപനത്തിലേക്ക് തരുവാനുള്ള ബാക്കി തുകയായ
4,01,814/- (നാല് ലക്ഷത്തി ഒരായിരത്തി എണ്ണൂറ്റി പതിനാല്)
രൂപയ്ക്ക് തുല്യമാണ് എന്നും ബാങ്കിൽ ചെക്ക്
Crl.R.P.Nos.735 and 893 of 2014
മാറുന്നതിനാവശ്യമായ പണമുണ്ട് എന്നും ചെക്ക് ബാങ്കിൽ
ഹാജരാക്കിയാൽ പണം കിട്ടും എന്നും പ്രതികൾ എന്നെ
പറഞ്ഞ് വിശ്വസിപ്പിച്ചാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1
ചെക്ക് എനിക്ക് തന്നത് ."
3rd paragraph of the proof affidavit filed in C.C.No.275/2005
reads:
"എക്സിബിറ്റ് പി. 1 ൽ കാണുന്ന ഒപ്പ് 1-)0 പ്രതിയുടെതാണ്.
ആയത് 1-)0 പ്രതി എന്റെ മുൻപിൽ വച്ച് ഇട്ടതാണ്. 1-)0
പ്രതി ചെക്ക് ഒപ്പിട്ട് തരുന്ന സമയം 2-)0 പ്രതി 1-)0 പ്രതിയുടെ
ഒപ്പം ഉണ്ടായിരുന്നു. 3-)0 പ്രതി സ്ഥാപനത്തിലെ മറ്റൊരു
പാർട്ട്ണർ ആയ 2-)0 പ്രതിയുടെ അറിവോടും സമ്മതത്തോടും
കൂടിയാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1 ചെക്ക് ഒപ്പിട്ട്
എനിക്ക് തന്നത്. എന്റെ സ്ഥാപനത്തിലേക്ക് തരുവാനുള്ള
പണത്തിന്റെ ഒരു ഗഡുവായ 80,000/-- (എൺപതിനായിരം)
രൂപയ്ക്ക് തുല്യമാണ് എന്നും ബാങ്കിൽ ചെക്ക്
മാറുന്നതിനാവശ്യമായ പണമുണ്ട് എന്നും ചെക്ക് ബാങ്കിൽ
ഹാജരാക്കിയാൽ പണം കിട്ടും എന്നും പ്രതികൾ എന്നെ
പറഞ്ഞ് വിശ്വസിപ്പിച്ചാണ് 1-)0 പ്രതി എക്സിബിറ്റ് പി. 1
ചെക്ക് എനിക്ക് തന്നത് ."
It is clear from the above that certain relevant factors omitted
to be stated by the complainant in the complaints were
supplied in the proof affidavits. Those were brought in
evidence by the accused but for want of support of pleadings
regarding those in the complaint were irrelevant and
inadmissible in evidence.
Crl.R.P.Nos.735 and 893 of 2014
17. Moreover, the complainant was not consistent in her
stand about the person who signed Ext.P1, as it was stated by
her at one part of the complaints that the cheques were signed
jointly by accused Nos.1 and 2 and issued to the complainant
but, in another part, she has stated that the signature in
Ext.P1 was that of accused No.1 and authored by him before
her. According to her accused No.2 was also with accused
No.1 then. She was also inconsistent in her version when she
says initially that the cheques were issued to discharge only a
part of the total dues of `4,81,814/- and says later that those
were issued to discharge `4,01,814/- itself. It is clear from
the face of Ext.P1 marked in each case that those were issued
for `4,01,814/- and `80,000/- respectively. Moreover it was
stated by the complainant in the proof affidavits that Ext.P1
was sent for collection through State Bank of Travancore to
Indian Bank, Palani Branch where an account was maintained
by accused No.3 and was returned bounced due to
insufficiency of funds there to honour those. With regard to
the issuance of the legal notices, it was stated by the
Crl.R.P.Nos.735 and 893 of 2014
complainant in the proof affidavits that those were issued to all
accused. On a perusal of the copy of the notices marked in
evidence in each case as Ext.P4, this Court is also convinced
that it was issued to all the three accused.
18. PW1 was found cross examined by the accused
elaborately. Her status as proprietorship was challenged.
According to PW1, accounts were properly and regularly
maintained by the concern and it has sales tax registration
also. But, she failed to produce any of those to answer the
challenge raised against her status as proprietor of the
complainant concern. She also deposed during cross
examination that the complainant concern was engaged in
scrap business. That is against her pleadings in the complaints
that the 3rd accused was a dealer in waste oil. When
confronted with, she said that what was pleaded in the
complaint is incorrect. Therefore, that is also a material
inconsistency to affect the prosecutions adversely.
19. Though Ext.P1 was stated in the proof affidavits as
signed by accused Nos.1 and 2 jointly, during cross
Crl.R.P.Nos.735 and 893 of 2014
examination she has gone to the extent of stating that the
cheques were signed by accused No.1 alone. She also
deposed as having no proper idea about the status of accused
No.1 though she deposed as if there were several business
dealings with the accused. However, the suggestion specifically
put to her during cross examination in each case that the
prosecutions in question were launched by misusing the
cheques lost from the accused, was denied by her.
20. Therefore, it appears from the complaints filed to
launch the prosecutions on hand that the 3 rd accused was
referred to as a firm and accused Nos.1 and 2 as it's partners.
3rd accused firm in each case was depicted as indebted to the
complainant for a total sum of `4,81,814/-, to discharge which
liability, Ext.P1 cheques were drawn from the bank where
account was maintained by accused No.3 and issued to the
complainant. Those were dishonoured on presentation and
that was the cause for the prosecutions in question to be
initiated against the accused.
Crl.R.P.Nos.735 and 893 of 2014
21. Section 138 NI Act speaks about an offence
attracted in the case of a bounced cheque for reasons of
insufficiency of funds in the account of its drawer to honour the
cheque or the amount exceeding the arrangements for
payment made with the banker by virtue of an agreement.
Therefore, as dealt with in the provision, the following
ingredients must be fulfilled for the offence under Section 138
NI Act to be attracted.
(a) issuance of a cheque
(b) presentation of the same
(c) dishonour of it for reasons, 'insufficienty of funds',
or 'exceeds the arrangement'.
(d) service of notice on the persons sought to be made
liable, and
(e) non-payment of the amount covered by the cheque
within 15 days from the date of receipt of the notice.
Section 138 NI Act speaks about commission of offence
thereunder by an individual whereas Section 141, about
commission of offences by companies. Explanation appended
to the provision clarified that a company means any body
corporate and extended it's application to even a firm or other
association of individuals.
Crl.R.P.Nos.735 and 893 of 2014
22. Section 141 NI Act reads:
"141. Offences by companies.--
(1) If the person committing an offence under
section 138 is a company, every person who, at the
time the offence was committed, was in charge of,
and was responsible to, the company for the
conduct of the business of the company, as well as
the company, shall be deemed to be guilty of the
offence and shall be liable to be proceeded against
and punished accordingly:
PROVIDED that nothing contained in this sub-
section shall render any person liable to
punishment if he proves that the offence was
committed without his knowledge, or that he had
exercised all due diligence to prevent the
commission of such offence:
PROVIDED FURTHER that where a person is
nominated as a Director of a company by virtue of
his holding any office or employment in the Central
Government or State Government or a financial
corporation owned or controlled by the Central
Government or the State Government, as the case
may be, he shall not be liable for prosecution under
this Chapter.
(2) Notwithstanding anything contained in sub-
section (1), where any offence under this Act has
been committed by a company and it is proved that
the offence has been committed with the consent
or connivance of, or is attributable to, any neglect
on the part of, any director, manager, secretary or
other officer of the company, such director,
manager, secretary or other officer shall also be
deemed to be guilty of that offence and shall be
liable to be proceeded against and punished
accordingly.
Explanation.--For the purposes of this section,
Crl.R.P.Nos.735 and 893 of 2014
(a) "company" means any body corporate and
includes a firm or other association of individuals;
and
(b) "director", in relation to a firm, means a partner
in the firm."
It is a deeming provision and it is envisaged thereunder that
when an offence under Section 138 NI Act is allegedly
committed by a company, every person who was in charge of
and responsible for the conduct of the business affairs of the
company, as well as the company shall be deemed to be guilty
of the offence and shall be liable to be proceeded against and
punished accordingly.
23. In the case on hand the allegation of the
complainant was that Ext.P1 issued by the accused in both the
cases to discharge the total monetary liability of `4,81,814/-,
due to the complainant, was dishonoured for the reason,
insufficiency of funds. Therefore, the amount was allegedly
due from accused No.3. According to PW1, Ext.P1 was signed
by accused Nos.1 and 2, but she clarified later that the
signature was authored only by accused No.1. Accused No.3
was alleged as the offender in the case in question and it being
Crl.R.P.Nos.735 and 893 of 2014
a firm, there is nothing wrong in accused Nos.1 or 2 to act as
it's authorised representative, to author signature in Ext.P1
and to issue the same to the creditor towards discharge of the
liability outstanding to the complainant. But, it is not clear
from Ext.P1, who authored the signature there. The capacity of
the person who signed it also is not mentioned there.
Therefore, Ext.P1 can only be considered as one issued by it's
signatory in his individual capacity and not in his capacity as a
partner of accused No.3.
24. Even if Ext.P1 was taken as issued by accused No.1
as the partner and authorised signatory of accused No.3, the
complaints filed to launch the prosecutions suffer for want of
specific pleadings there that accused Nos.1 and 2 were in
charge of and responsible to the company at the relevant time,
the offence was allegedly committed by the company. It is
clear from Section 141 NI Act, the deeming provision would
only apply, when it was pleaded specifically in the complaint
that the persons shown as partners of accused No.3 were in
charge of and responsible to the company for the conduct of
Crl.R.P.Nos.735 and 893 of 2014
it's business and then alone, they can also be deemed to have
committed the offence committed by the accused No.3 under
Section 138 NI Act. Without allegations of those nature being
incorporated in the complaints filed to launch the prosecutions,
they cannot be deemed to have committed the offence under
Section 138 NI Act alongwith accused No.3.
25. In the case on hand, on a scrutiny of the complaints
which formed basis for the prosecutions, it is revealed that
pleadings of the nature referred to above are not incorporated
there and for the reason itself they cannot be deemed to have
been guilty for the offence committed by accused No.3.
Though it was alleged in the complaint that accused Nos.1 and
2 were partners of accused No.3, in the cause title, the status
of accused No.1 was shown as partner and that of accused
No.2 as Managing Partner. During cross examination, her
specific version as PW1 was that accused Nos. 1 and 2 were
partners of accused No.3. The status of accused Nos.1 and 2,
as partners of accused No.3 were not disputed by them. The
legal notices evidenced as sent to each of the accused in their
Crl.R.P.Nos.735 and 893 of 2014
respective status as shown in the complaints were served on
each of them, but, they did not sent reply notices
controverting the respective status.
26. When the liability was established as due from
accused No.3 to the complainant, when Ext.P1 was established
as drawn by accused No.3 through it's authorised signatory
and issued to the complainant, when it was returned bounced
for the reason insufficiency of funds in the account maintained
by accused No.3 with it's banker and when the legal notices
issued were not responded to by the accused, the offence
under Section 138 NI Act undoubtedly would be attracted
against accused No.3. In the cause title of the complaints,
accused No.3 was shown as represented by accused No.2, in
his capacity as Managing Partner.
27. Criminal liability for an offence under Section 138 NI
Act committed by accused No.3, can be fastened on it's
partners constituting it only by invoking Section 141 NI Act,
the deeming provision. The accused who were holding the
status respectively as partner and Managing Partner of the
Crl.R.P.Nos.735 and 893 of 2014
firm, in their capacity as such, can only be deemed to be liable
for the offence committed by accused No.3, when it was
specifically pleaded in the complaint that they were in charge
of and responsible for the conduct of the business of accused
No.3, at the relevant time when the offence was committed by
the latter.
28. It is unfortunate that pleadings as aforestated were
not found made in the complaints. Therefore, accused Nos.1
and 2 cannot be deemed to have been guilty for the offence
under Section 138 NI Act.
29. Apart from all the above, accused No.3 stands
acquitted by the trial court by judgment passed in
C.C.Nos.275/2005 and 1336/2005. The judgments were
assailed in Crl.Appeal Nos.853/2008 and 53/2009, vide
judgment passed by the appellate court in the Crl. Appeals, the
judgments of the trial court were confirmed. No challenge was
raised against the judgments of the appellate court by the
complainant and therefore, those have become final. Since
accused No.3 was found not guilty of the offence under Section
Crl.R.P.Nos.735 and 893 of 2014
138 NI Act, the revision petitioner cannot be deemed to have
committed the offence by invoking the jurisdiction under
Section 141 NI Act.
30. The discussion hereinabove, made it crystal clear
that the trial court as well as the appellate court have
committed grave error while convicting accused No.1 for the
offence under Section 138 NI Act, without entering into a
finding of guilt of accused No.3 under Section 138 NI Act. The
judgments of the trial court as well as of the appellate court in
C.C.Nos.275/2005 and 1336/2005 undoubtedly are illegal,
improper and infirm in all respects and are only to be reversed.
In the result, Crl.Revision Petitions are allowed and the
judgments of the trial court as well as the appellate court in
C.C.Nos.275/2005 and 1336/2005 were reversed. Accused
No.1, the revision petitioner in both revision petitions are
acquitted for the offence under Section 138 NI Act.
Sd/-
MARY JOSEPH
JUDGE
NAB
